Prospect Land Conservation, LLC v. louisville/jefferson County Metro Planning Commission

RENDERED: NOVEMBER 18, 2022; 10:00 A.M.
NOT TO BE PUBLISHED

Commonwealth of Kentucky
Court of Appeals

NO. 2021-CA-0956-MR

PROSPECT LAND APPELLANT
CONSERVATION, LLC

APPEAL FROM JEFFERSON CIRCUIT COURT
v. HONORABLE ERIC JOSEPH HANER, JUDGE
ACTION NO. 20-CI-006845

LOUISVILLE/JEFFERSON COUNTY
METRO PLANNING COMMISSION;
LDG LAND HOLDINGS, LLC; AND
LOUISVILLE/JEFFERSON COUNTY
METRO GOVERNMENT APPELLEES

OPINION
AFFIRMING

** ** ** ** **

BEFORE: TAYLOR, K. THOMPSON, AND L. THOMPSON, JUDGES.

TAYLOR, JUDGE: Prospect Land Conservation, LLC (Prospect Land) brings this

appeal from a June 25, 2021, order of the Jefferson Circuit Court dismissing its

complaint. We affirm.
 BACKGROUND

In 1972, Wesley R. Logsdon owned 42.5539 acres of real property

located in Prospect, Kentucky (Logsdon Tract). Logsdon sought to rezone the tract

from R-4 single-family residential to R-6 multi-family residential. Logsdon filed

an application with the Jefferson County Planning Commission (Planning

Commission) to rezone the Logsdon Tract and to develop the Logsdon Tract with

652 units, including apartments and townhouses. The Planning Commission

recommended that the application be denied because Logsdon refused to dedicate a

sixty-foot right-of-way across the Logsdon Tract.

To secure the approval of the Jefferson County Fiscal Court, Logsdon

executed a Deed of Restrictions as to the Logsdon Tract on June 12, 1972 (1972

Deed of Restrictions). Relevant herein, the population density of the Logsdon

Tract was “limited to fourteen (14) dwelling units per acre” and “[a] sixty (60) foot

right-of-way” was to be dedicated for public use across the tract. The 1972 Deed

of Restrictions permitted any citizen or resident of Jefferson County, Kentucky, to

enforce the restrictions contained therein. On June 13, 1972, the Jefferson County

Fiscal Court approved the zoning change and rezoned the Logsdon Tract to R-6

multi-family residential to permit Logsdon to develop the tract.

Subsequently, Logsdon executed another Deed of Restrictions as to

the Logsdon Tract on July 25, 1974 (1974 Deed of Restrictions). The 1974 Deed

-2-
of Restrictions was executed between Logsdon and Gertrude P. Brown, James C.

Stone, Jr., and Pauline G. Boyd. In the 1974 Deed of Restrictions, the population

density on the Logsdon Tract was limited to “12 dwelling units, as previously

defined by the regulations of the Louisville and Jefferson County Planning

Commission, per acre, such density to be computed on the basis of the entire

[Logsdon] tract.” The 1974 Deed of Restrictions particularly stated that the

restrictions were for the benefit of Brown, Stone, Boyd, and their heirs/assigns.

The Logsdon Tract was not developed by Logsdon, and it was

eventually divided into eight separate parcels of real property. Although zoned R-

6 multi-family residential, seven of the eight parcels contained single-family

residences. In 2018, LDG Land Holdings, LLC (LDG) purchased the eighth parcel

of the Logsdon Tract. Unlike the other seven parcels, the eighth parcel did not

contain any development and was 11.89 acres in size. LDG also owned an

adjoining 1.8373 acres parcel of real property.

On July 22, 2019, LDG filed a Category 3 Plan Application with the

Planning Commission to develop the two parcels of real property into 164

apartments within seven buildings, known as the Veridian at Prospect. The

application did not involve a zoning change. The Planning Commission ultimately

approved LDG’s application and development plan on October 29, 2020.

-3-
 Less than a month thereafter, on November 19, 2020, Prospect Land

was incorporated in Kentucky as a limited liability company. And, six days after

its incorporation (November 25, 2020), Prospect Land, inter alios, filed a

complaint in the Jefferson Circuit Court against the Planning Commission,

Louisville/Jefferson County Metro Government (Metro Government), and LDG.1

Therein, Prospect Land alleged that it was injured and aggrieved by the final action

of the Planning Commission in approving LDG’s development plan and sought to

appeal same. Prospect Land also sought a declaration of rights regarding whether

LDG’s plan of development violated the 1972 Deed of Restrictions and the 1974

Deed of Restrictions applicable to the Logsdon Tract.

Prospect Land further claimed that the 1972 rezoning of the Logsdon

Tract to R-6 multi-family residential was conditional and reverted to its original

zoning (R-4 single-family residential) when the tract was not developed by

Logsdon. Prospect Land additionally asserted that the 1972 rezoning of the

Logsdon Tract to R-6 multi-family residential was invalid as no ordinance was

enacted by the Fiscal Court.

1
In addition to Prospect Land Conservation, LLC, Prospect R&R, LLC, was also a plaintiff
below; however, Prospect R&R, LLC, filed a motion to be dismissed as a party in the Court of
Appeals and was dismissed by Order entered October 11, 2022. Consequently, we will not refer
to Prospect R&R, LLC, as a party herein.

-4-
 LDG, the Planning Commission, and Metro Government filed

answers. Eventually, LDG filed a motion to dismiss for failure to state a claim

upon which relief could be granted pursuant to Kentucky Rules of Civil Procedure

(CR) 12.02. LDG argued that Prospect Land lacked standing to appeal the

Planning Commission’s approval of its development plan and lacked standing to

enforce the 1972 Deed of Restrictions or the 1974 Deed of Restrictions. LDG also

maintained that Prospect Land’s challenge to the 1972 zoning change was time-

barred by Kentucky Revised Statutes (KRS) 100.347(2).

Subsequently, the Planning Commission and Metro Government filed

a motion to dismiss for failure to state a claim upon which relief could be granted

under CR 12.02. Therein, they argued that Prospect Land lacked standing to

appeal the Planning Commission’s approval of LDG’s development plan. The

Planning Commission and Metro Government also maintained that Prospect Land

failed to exhaust its administrative remedies and that its challenge to the 1972

zoning change was time-barred. The Planning Commission and Metro

Government also asserted that all necessary parties were not named as defendants.

In particular, the Planning Commission and Metro Government pointed out that the

1972 zoning change and the Deeds of Restrictions affected the entire Logsdon

Tract; however, the owners of the other seven parcels of the Logsdon Tract were

not named as parties.

-5-
 By order entered June 25, 2021, the circuit court granted the motions

to dismiss. The circuit court initially concluded that Prospect Land possessed

standing to appeal the Planning Commission’s approval of LDG’s development

plan. The circuit court reasoned that Prospect Land claimed in the complaint to be

injured and aggrieved, “which seems to be all the law requires for a plaintiff to

plead standing sufficiently.” Order at 3. The circuit court also stated that Prospect

Land could properly seek to enforce the 1972 Deed of Restrictions. However, the

court was of the opinion that the sixty-foot right-of-way restriction was no longer

enforceable and that the population density restriction was not violated by LDG’s

development plan. As for the R-6 multi-family residential zoning, the circuit court

held it was not conditional or voided by Logsdon’s failure to develop his tract per

the development plan. The circuit court also concluded that the fiscal court could

properly rezone property by resolution in 1972. This appeal follows.

STANDARD OF REVIEW

To begin, CR 12.02 permits a circuit court to dismiss an action when

the complaint fails to set forth a claim upon which relief could be granted. CR

12.02 specifically provides that if “matters outside the pleading are presented to

and not excluded by the court, the motion shall be treated as one for summary

judgment.” In this case, it is clear that matters outside the pleadings were

-6-
contained in the record, and the circuit court apparently did not exclude same.

Thus, we shall treat the June 25, 2021, order as a summary judgment.

The standard of review upon appeal of an order granting summary

judgment is “whether the trial court correctly found that there were no genuine

issues as to any material fact and that the moving party was entitled to judgment as

a matter of law.” Scifres v. Kraft, 916 S.W.2d 779, 781 (Ky. App. 1996) (citing

CR 56.03). Upon a motion for summary judgment, all facts and inferences in the

record are viewed in a light most favorable to the nonmoving party and that “all

doubts are to be resolved in his favor.” Steelvest, Inc. v. Scansteel Service Center,

Inc., 807 S.W.2d 476, 480 (Ky. 1991). If there are no factual issues, summary

judgment looks only to questions of law and we review a trial court’s decision to

grant summary judgment de novo. Brown v. Griffin, 505 S.W.3d 777, 781 (Ky.

App. 2016); see also Blackstone Mining Co. v. Travelers Ins. Co., 351 S.W.3d 193,

198 (Ky. 2010). Appellant acknowledges that this appeal only looks to questions

of law and our review proceeds accordingly.

ANALYSIS

Prospect Land contends that the circuit court improperly concluded

that the 1972 rezoning of the Logsdon Tract from R-4 single-family residential to

R-6 multi-family residential was valid and effective. Prospect Land points out that

the fiscal court adopted a resolution to effectuate the rezoning and argues that only

-7-
an ordinance could properly rezone real property in 1972 in Jefferson County.

Prospect Land also alleges that the resolution was only read one time rather than

the legally mandated two readings. Alternatively, if valid, Prospect Land

maintains that the 1972 resolution temporarily rezoned the Logsdon Tract to R-6

multi-family residential and that such rezoning was abandoned when the Logsdon

Tract was not developed as contemplated by the resolution. As a consequence,

Prospect Land submits that the Logsdon Tract’s zoning reverted to R-4 single-

family residential. Additionally, Prospect Land also argues that the circuit court

erred by failing to conclude that the 1972 Deed of Restrictions and the 1974 Deed

of Restrictions as to the Logsdon Tract were violated by LDG’s development plan.

In particular, Prospect Land claims that LDG is compelled to dedicate a sixty-foot

right-of-way per the 1972 Deed of Restrictions and that LDG’s development plan

violated the 1974 Deed of Restrictions that limited density to twelve dwelling units

per acre. Prospect Land further alleges that the Planning Commission erroneously

approved LDG’s development plan in view of the violations of the 1972 Deed of

Restrictions, the 1974 Deed of Restrictions, and the proper zoning of the Logsdon

Tract as R-4 signal-family residential.

It is well-established that a party seeking to appeal an administrative

agency’s decision must strictly comply with all relevant statutory provisions,

including those contained in KRS 100.347. Kenton County Bd. of Adjustment v.

-8-
Meitzen, 607 S.W.3d 586, 595 (Ky. 2020). The failure to do so deprives the court

of jurisdiction to hear the appeal. Id.

In its complaint, Prospect Land sought to appeal the Planning

Commission’s approval of LDG’s development plan under the statutory appeal

procedure set forth in KRS 100.347, which provides in relevant part:

(2) Any person or entity claiming to be injured or
aggrieved by any final action of the planning
commission shall appeal from the final action to the
Circuit Court of the county in which the property,
which is the subject of the commission’s action, lies.
Such appeal shall be taken within thirty (30) days
after such action. Such action shall not include the
commission’s recommendations made to other
governmental bodies. All final actions which have
not been appealed within thirty (30) days shall not be
subject to judicial review. Provided, however, any
appeal of a planning commission action granting or
denying a variance or conditional use permit
authorized by KRS 100.203(5) shall be taken pursuant
to this subsection. In such case, the thirty (30) day
period for taking an appeal begins to run at the time
the legislative body grants or denies the map
amendment for the same development. The planning
commission shall be a party in any such appeal filed
in the Circuit Court.

Under KRS 100.347(2), a person “claiming to be injured or aggrieved

by any final action of the planning commission” may pursue an appeal if filed

within thirty days of such final action. To be considered injured or aggrieved

within the meaning of KRS 100.347(2), the Kentucky Supreme Court has held that

-9-
a party must provide factual allegations in the complaint stating how he or she was

particularly injured, aggrieved, or harmed by the decision:

Taking the plain meanings of these words in the context
of KRS 100.347(1), we conclude that a party pursuing an
appeal from a board of adjustment must claim some type
of hurt or damage, or some form of suffering or
infringement that the party will experience as a result of
the board’s decision.

The only reasonable method by which a person or
entity can “claim” to be injured or aggrieved by a final
decision of a board of adjustment when initiating an
appeal in circuit court is through their complaint. But
Meitzen and Nageleisen failed to provide any factual
allegations to support a claim that they themselves were
injured or aggrieved in some way by the Board’s action.
In fact, the words “injured” or “aggrieved” (or even
synonyms of those words) do not appear anywhere in
their complaint. While these particular words are not
necessarily required, a complaint pursuant to KRS
100.347(1) must reflect how the plaintiff fits into the
statutory language authorizing an appeal. Meitzen and
Nageleisen explain how they believe the Board erred
legally but they fail to state how the alleged errors affect
them or cause injury to them. In fact, the complaint reads
solely as a critique of the Board’s decision to grant the
conditional use permit, not as a claim on behalf of parties
who are themselves injured or aggrieved.

The language in KRS 100.347(1) is clear and
unequivocal – a party must claim to be “injured or
aggrieved” by a board’s final action. The legislative
intent is apparent from the words used in the statute.
While the General Assembly could have allowed any
person residing in the county, for example, to initiate an
appeal from a board of adjustment decision, the
legislature deliberately limited appeals to those instances

-10-
 where a person or entity could claim to be actually
injured or aggrieved by the board’s action. . . .

Kenton Co. Bd. of Adjustment, 607 S.W.3d at 592-93.2

In its complaint, Prospect Land claims to be injured or aggrieved per

KRS 100.347(2). However, like the complaint in Kenton County Board of

Adjustments, 607 S.W.3d at 586, Prospect Land’s complaint alleges multiple

grounds as error but fails to set forth any facts as to the harm, damage, or injury it

will suffer as a result of the Planning Commission’s approval of LDG’s

development plan. It must be emphasized that Prospect Land was incorporated as

an LLC approximately a month after the Planning Commission’s approval of

LDG’s development plan. Upon examination of Prospect Land’s complaint, we

conclude that it failed to satisfy the injured or aggrieved requirement of KRS

100.347(2). As a result, we hold that the circuit court did not possess jurisdiction

to review the Planning Commission’s approval of LDG’s development plan.

In its complaint, Prospect Land also sought a declaration of rights as

to the validity of the 1972 rezoning of the Logsdon Tract to R-6 multi-family

residential and the enforcement of both the 1972 Deed of Restrictions, and the

2
Although Kenton County Board of Adjustment v. Meitzen, 607 S.W.3d 586, 595 (Ky. 2020)
involved Kentucky Revised Statutes (KRS) 100.347(1), the Supreme Court recognized in
Footnote 10 that “KRS 100.347(1), (2), and (3) each contain similar requirements for appeals,
they simply govern appeals from different entities. . . . Each subsection provides that ‘[a]ny
person or entity claiming to be injured or aggrieved by any final action . . .’ may appeal to a
circuit court.” For this reason, its holding is also applicable to subsection (2) of KRS 100.347.

-11-
1974 Deed of Restrictions. Prospect Land filed the complaint in November 2020,

and the Logsdon Tract was rezoned from R-4 single-family residential to R-6

multi-family residential in June 1972. Prospect Land seeks to challenge the

rezoning of the Logsdon Tract some 48 years after the fact. Based upon our

review of the applicable law in effect in 1972 regarding the amendment of a zoning

regulation, we agree with the circuit court that the fiscal court properly rezoned by

resolution the Logsdon Tract to R-6 multi-family residential in 1972 and that such

rezoning was not conditional upon Logsdon actually developing the tract.

As to the 1972 Deed of Restrictions, Prospect Land claims that it

requires a sixty-foot right-of-way be dedicated by LDG. The 1972 Deed of

Restrictions was applicable to the Logsdon Tract as a whole and did not

specifically set forth the location of the sixty-foot right-of-way. The Logsdon

Tract has been divided into eight separate parcels. As the precise location of the

sixty-foot right-of-way provided for in the 1972 Deed of Restrictions was not

particularly set forth therein, it is conceivable that the sixty-foot right-of-way may

encroach upon some or all of the remaining seven parcels of the Logsdon Tract.

However, the owners of the seven parcels were not made parties below or in this

appeal. We view this oversight as fatal. The seven owners of the remaining

parcels of the Logsdon Tract are necessary and indispensable as their real property

could be affected by a decision on the merits. Browning v. Preece, 392 S.W.3d

-12-
388, 391-92 (Ky. 2013). And, the failure to name an indispensable party is also a

jurisdictional defect. Id. at 392. Consequently, we decline to address any issues

related to sixty-foot right-of-way as set forth in the 1972 Deed of Restrictions.

As to the 1974 Deed of Restrictions, it plainly provides, in relevant

part:

The foregoing covenants and restrictions shall run
with the lands and shall be binding upon and inure to the
benefit of the parties hereto, their respective heirs and
assigns, the lands of the Parties of the Second Part being
with respect to said Gertrude P. Brown, . . . James C.
Stone, . . . and Pauline G. Boyd[.]

The 1974 Deed of Restrictions unambiguously stated that its

covenants and restrictions inured to the benefit of the parties thereto and their

heirs/assigns. Thus, it was clearly the parties’ intent that only the grantees and

their heirs/assigns benefit from the 1974 Deed of Restrictions. See KL & JL Invs.,

Inc. v Lynch, 472 S.W.3d 540, 547 (Ky. App. 2015). Generally, only these parties

that a deed of restrictions were intended to benefit have standing to seek

enforcement thereof. 20 Am. Jur. 2d Covenants, Etc. § 239 (2022). Prospect Land

was not an heir or assign of the grantees in the 1974 Deed of Restrictions. In fact,

Prospect Land owns none of the eight parcels that was once the Logsdon Tract.

For this reason, we agree with the circuit court that Prospect Land lacks standing to

enforce the 1974 Deed of Restrictions.

We view any remaining contention of error as moot or without merit.

-13-
 In conclusion, the circuit court properly rendered summary judgment

dismissing Prospect Land’s complaint.

For the foregoing reasons, the order of the Jefferson Circuit Court is

affirmed.

ALL CONCUR.

-14-
BRIEF FOR APPELLANT: BRIEF FOR APPELLEE
LOUISVILLE/JEFFERSON
J. Bissell Roberts COUNTY METRO PLANNING
Louisville, Kentucky COMMISSION AND
LOUISVILLE/JEFFERSON
REPLY BRIEF FOR APPELLANT: COUNTY METRO GOVERNMENT:

Clark C. Johnson Anne P. Scholtz
William R. (Rick) Adams Travis J. Fiechter
Louisville, Kentucky Laura M. Ferguson
Louisville, Kentucky
ORAL ARGUMENT FOR
APPELLANT: BRIEF FOR APPELLEE LDG LAND
HOLDINGS, LLC:
William R. (Rick) Adams
Louisville, Kentucky Clifford H. Ashburner
J. Tanner Watkins
Philip E. Cecil
Louisville, Kentucky

ORAL ARGUMENT FOR
APPELLEE
LOUISVILLE/JEFFERSON
COUNTY METRO PLANNING
COMMISSION AND
LOUISVILLE/JEFFERSON
COUNTY METRO GOVERNMENT:

Anne P. Scholtz
Louisville, Kentucky

ORAL ARGUMENT FOR
APPELLEE LDG LAND
HOLDINGS, LLC:

J. Tanner Watkins
Louisville, Kentucky

-15-